Rohrback v. Dauer

469 So. 2d 833 | Fla. Dist. Ct. App. | 1985

NESBITT, Judge.

We reverse the final summary judgment in favor of appellees on a finding that they failed to meet their burden of conclusively establishing the lack of genuine issues of material fact with regard to: (a) when Rohrback knew or should have known of his right to a cause of action so as to trigger the running of the statute of limitations, Rosen v. Sparber, 369 So.2d 960 (Fla. 3d DCA 1978), cert. denied, 376 So.2d 76 (Fla.1979); (b) whether they (ap-pellee;s) lacked knowledge of Rohrback’s intention to assert his rights and whether they were prejudiced by his delay in bringing suit, Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956); (c) whether the alleged oral agreement was supported by consideration, Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So.2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So.2d 116 (Fla. 3d DCA), cert. denied, 341 So.2d 1086 (Fla.1976); (d) whether the statute of frauds applied,1 see Av-Med, Inc. v. French, 458 So.2d 67 (Fla. 3d DCA 1984) (complete performance by a party removes oral contract from the operation of the statute of frauds); United of Omaha Life Insurance Co. v. Nob Hill Associates, 450 So.2d 536 (Fla. 3d DCA), review denied, 458 So.2d 274 (Fla.1984) (party may be es-topped from raising statute of frauds as a defense); Dobbs v. Gorlitz, 443 So.2d 1068 (Fla. 3d DCA 1984) (issue of fact on question of whether oral promise was to be performed within a year precludes summary judgment); and (e) whether there was consideration for the assignment of Rohr-baek’s right, title and interest in the partnership and whether the assignment was procured by fraud,2 Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983).

We find, in addition, that the alleged agreement was not a sale of personal property for purposes of section 671.206(1), Florida Statutes (1983).3 The agreement provided that the appellees would preserve Rohrback’s partnership interest from loss through foreclosure in return for Rohr-back’s continued services and forbearance from suit. Even if the agreement required the paper transfer of an interest from ap-pellees to Rohrback, the agreement was not a contract for the sale of personal property.4 Cf. Stone v. Krylon, Inc., 141 *835F.Supp. 785 (E.D.Pa.1956) (oral agreement to provide plaintiff with an exclusive distributorship in return for his services in developing a product is a contract of employment and not a sale subject to the statute of frauds); Baldassare v. Singer, 444 Pa. 100, 282 A.2d 262 (1971) (plaintiffs agreement to work for defendant in exchange for stock not a sale subject to the statute of frauds).

Reversed.

. The statute of frauds does not operate to bar Rohrback’s quantum meruit and fraud actions. See Hiatt v. Vaughn, 430 So.2d 597, 598 n. 2 (Fla. 4th DCA 1983) (claim for quantum meruit not subject to the statute of frauds); Chaires v. North Florida National Bank, 432 So.2d 183 (Fla. 1st DCA 1983) (reversing dismissal of fraud count which was based on statute of frauds).

. We note that if there was consideration for the assignment and it was not fraudulently obtained, then Rohrback is entitled to no relief on his breach of contract count.

. 671.206 Statute of frauds for kinds of personal property not otherwise covered.—

(1) Except in the cases described in subsection (2) of this section a contract for the sale of personal property is not enforceable by way of action or defense beyond $5,000 in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by his authorized agent.

.We leave for decision in a future case the question of whether the transfer of a partnership interest for a price, as opposed to services, constitutes a sale of personal property. See *835§§ 620.18, 671.206(1), 672.106(1), Fla.Stats. (1983).

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